Archive for July, 2012

July 24th, 2012 Comments Off on Finally, Facebook Can be an Employer’s Friend, too

or Don’t invite people to play ‘naked Twister’

It has been a long while since I have posted anything. Mostly that is because I just hadn’t found anything out there that interested me or that I thought might interest you. But that has changed. I just found a case from Tennessee where Facebook posts by an employee might actually help an employer avoid liability for sexual harassment.

Before I start, I want you to know that this might get a bit racy, so don’t let your young kids read it. On the other hand, I promise not to say anything that the court didn’t put in its opinion. So really, how bad can it be?

The case , Tarnongski v. City of Oak Ridge (No. 3:11-CV-269) is out of the Eastern District of Tennessee and the court’s memorandum opinion comes from the defendant’s motion for summary judgment. The plaintiff in the case, a former police officer, brought a 12-count complaint against the city claiming, among other things, that she was subjected to a sexually hostile work environment.

She claimed that “she told her supervisor… that she suspected [an officer] was spreading sexual rumors about her. Plaintiff claims that [the officer] also directly told her that her ‘husband [was] trying to get him [the officer] to have an orgy’” involving a female acquaintance and that “he felt like I was a lesbian and I wanted to be part of it.’ Plaintiff further testified, ‘After that, of course, that’s when people started saying, we know what [the officer] is saying about you. That’s when the rumors start[ed] coming to me.’” (In case you are wondering, all those words in brackets are where I changed the names to protect the innocent.)

So far, nothing special right? Your run-of-the-mill hostile work environment case with rumors of sexual misbehavior, suggestions of orgies and rumors about sexual preference. And no big surprise that the plaintiff was upset. In fact, according to the court, the plaintiff stated in her deposition: “I’m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that’s severely humiliating to me.” Plaintiff further testified that she would never “go out and talk to people about such things, even in a joking manner.” Again, no big surprise.

But that is sort of where this case goes off the tracks. The plaintiff had a Facebook page – and a penchant for posting. Want to guess what she posted? Well, we will just let the court tell you. In his opinion, the judge said “Curiously, [That’s the judge’s word, not mine] however, on February 23, 2010, plaintiff was herself discussing on Facebook her desire for a female friend to join her ‘naked in the hot tub.’ The previous day on her Facebook page, plaintiff was discussing ‘naked Twister.’ May 22, 2010 postings on plaintiff’s Facebook page by her Facebook ‘friends’ talked about female orgies involving plaintiff, [], and others, to be filmed by plaintiff’s husband.”

With this Facebook evidence in hand, the city argued in a motion for summary judgment that there was no way that the plaintiff could have been offended by the comments made by the officer and, thus, there was no hostile work environment. The plaintiff, on the other hand, testified that “the Facebook postings were ‘obviously’ jokes” and that the “‘jokes’ were not embarrassing or humiliating to her because they were ‘between friends.’”

With all of this in mind, the court granted the city’s motion for summary judgment on all but the hostile work environment count and it seemed like the court wanted to get rid of that count too. But the court noted: “Defendant presents a very enticing argument but — again — at summary judgment the non-movant’s evidence is to be believed, . . . ” About the Facebook evidence the court noted: “the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter.”

So what is the lesson of this little story? For employees, it is the same lesson I have been trying to hammer into the heads of my kids since they got on Facebook: INVITE PEOPLE TO PLAY NAKED TWISTER ON FACEBOOK AND IT MAY JUST COME BACK TO BITE YOU. Well, that’s not really it but you get my drift. The lesson for employers: If you get sued, Facebook can be your friend, too.

About

Steven Palazzolo brings a unique and varied background to the practice of labor and employment law. Prior to attending law school, Steve spent seven years as a shop floor supervisor in both union and non-union food processing plants. Steve also spent 11 years as in-house counsel specializing in labor and employment law for a multi-billion-dollar multinational corporation with extensive manufacturing operations. During this time Steve also supervised a staff of HR professionals. Steve represents employers, emphasizing counseling clients on employee relations issues, policy development, NLRB, ADA, FMLA and international labor relations. Steve has experience in acquisitions, immigration, employee benefits, campaign finance, employment litigation, civil rights and related issues, and has provided counsel to companies in the agricultural, food processing, hospitality, manufacturing and marketing industries in the United States, South and Central America, Europe and Asia. He currently provides counsel to a variety of leading Midwest businesses.

Don’t forget, this blog is for informational purposes only and is not intended to provide legal advice. You should not act based solely on the contents of this blog. The answers to legal questions often depend upon the specific matter at hand. If you have a legal question, contact your lawyer. For more information or a consultation contact spalazzolo@wnj.com.